TILOCCA v NSW INSURANCE MINISTERIAL CORPORATION SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL CLARKE JA, HANDLEY JA and COLE JA 20 June 1996 [1996] NSWCA 532 MOTOR VEHICLE ACCIDENT — liability — excessive speed — miscarriage on cross-examination. On 14 June 1987 the plaintiff, who was then eight years old, gave evidence that he approached a pedestrian crossing, saw a taxi slowing down, proceeded to cross, and was struck by the taxi. However, the trial judge preferred the evidence of the taxi driver and that of an independent witness who said that he saw the plaintiff run diagonally across an adjacent side street before running straight out onto the pedestrian crossing. The trial judge held that there was insufficient time for the driver to avoid the collision. The plaintiff also alleged that even though the defendant was within the speed limit he was travelling with excessive speed, but the trial judge found against this as there was no time to observe the plaintiff before the accident. The plaintiff appealed on the basis that there was excessive speed, and also on the grounds that the plaintiff had not been cross-examined as to running during the first day of the trial and that the independent witness's evidence on the second day should not have been accepted because of this. The plaintiff's counsel did not recall the plaintiff in reply. HELD, dismissing the appeal: (1) No error was made by the trial judge on the question of speed; (2) It had been the plaintiff's decision not to further challenge the witness's evidence in reply; (3) The trial had not miscarried in any way requiring the intervention of the Court. Handley JA. This is a plaintiff's appeal from judgment given for the defendant in a motor vehicle accident case heard by Smythe QC DCJ. The accident occurred on Sunday 14 June 1987 in the afternoon. The plaintiff was then a child of eight years, eight months and he gave evidence that after returning his pushbike to his home in Balmain Road, he had walked up the footpath on the eastern side of Balmain Road, crossed over Hill Street and then proceeded to walk across a marked pedestrian crossing to return to the school on the opposite side of Balmain Road where he had previously been playing with his brothers. The plaintiff said he saw the taxi which struck him, thought it was slowing down and proceeded to cross. As the trial judge indicated, had the plaintiff's evidence been accepted, the result would have been a verdict in his favour without any deduction for contributory negligence. However, that was not the whole of the evidence. The taxi driver said that he was travelling at 55 kilometres an hour and that the plaintiff, when he was virtually on the crossing, ran out from his left straight ahead of him and the collision took place. He endeavoured to break and swerve to the right but was unable to avoid the impact. The defendant's case was broadly supported by an independent witness, a Mr Wade, who was approaching in Balmain Road from the opposite direction travelling at much the same speed as the defendant. He said that he observed the plaintiff running diagonally across Hill Street and then without stopping, he ran straight onto the pedestrian crossing in front of the taxi. 2 UNREPORTED JUDGMENTS The judge referred to the fact that the eastern footpath of Balmain Road at this point is approximately one metre wide and that the collision occurred no more than two metres onto the carriageway. In the circumstances, there was clearly insufficient time for the defendant driver to take evasive action or to brake to avoid the collision. Mr Wade was strenuously cross-examined as the judge noted and this cross-examination was based on a statement given by him to the police some fifteen months after the accident but many years before the trial. Counsel forthe plaintiff called for the original and when it was produced proceeded to cross-examine on it. The statement was tendered without objection during the cross-examination. The judge was satisfied that Mr Wade was giving evidence which was substantially accurate and on that basis he rejected the principal case made on behalf of the plaintiff. The second aspect of the plaintiff's case was based on excessive speed. Although the taxi driver was driving within the speed limit, he was familiar with the area, knew that there was a school in the vicinity and that he was approaching a pedestrian crossing facing a blind intersection with Hill Street. The judge said that he carefully considered this aspect of the case, but concluded ultimately that this part of the plaintiffs case also failed. He said: The reality of the matter is that the defendant driver would have had the plaintiff under observation for no more than three metres. It is clear on the photographs that have been tendered that while he was in Hill Street, that is before he emerged onto the eastern footpath of Balmain Road, he was completely invisible to a driver travelling south as the defendant driver was. In the circumstances His Honour was not satisfied with the plaintiff's case, and entered a verdict for the defendant. Mr King, who made far more out of this case than I would have thought possible until I heard his submissions and said everything that could possibly have been said on behalf of the appellant, made three submissions. He submitted that it was not proper for the trial judge to act on the evidenceof Mr Wade in the light of the way in which the case had been conducted during the first day. Secondly, that the course of the trial became unsatisfactory when Mr Wade went back into the witness box on the second day and thirdly, even if Mr Wade was accepted, the driver's speed was excessive in the circumstances. There is no need for me to record the third submission because I have not been satisfied that the appellant has established any error on the part of the trial judge in this respect. Mr King certainly made good the initial basis for his other submissions in that it is clear that the plaintiff was not cross-examined on the first day to suggest that he had been running up Hill Street immediately before he reached Balmain Road and entered the pedestrian crossing. The most that could be said is that he gave evidence-in-chief that he had returned his pushbike to his home at the side gate. Where the side gate was located was never identified. Moreover, again on the first day of the trial, the defendant driver gave evidence which indicated that he had not observed the plaintiff either in Balmain Road or in Hill Street until moments before the impact. The question of the plaintiff's movements in Hill Street did not become a live issue in the oral evidence until the second day when Mr Wade continued with his evidence-in-chief. However he was cross-examined on this question and an endeavour was made to establish that there was a material inconsistency between his oral evidence at the trial and his statement to the police I have previously referred to. URJ — TILOCCA v NSW INSURANCE MINISTERIAL CORPORATION (Cole JA) 3 Despite this cross-examination, Mr Wade maintained his evidence that the plaintiff had been running in Hill Street before he emerged into Balmain Road. At the end of the defendant's case, plaintiff's counsel had the usual opportunity to present a case in reply which could naturally have included recalling the plaintiff to ask him about his movements when he returned his pushbike to his home and then came back to Balmain Road. Although, as I have said, plaintiff's counsel was well aware of the importance of this issue and indeed had been cross-examined on it, he did not recall the plaintiff. Had the plaintiff been recalled, he could have given evidence that he had never entered Hill Street at any stage except to cross from one side to another on the kerb of Balmain Road presenting a clear conflict with the evidence of Mr Wade. However this course was not taken, and Mr Wade's evidence remained without direct challenge. In these circumstances, I am unable to conclude that the trial miscarried in any way which would attract the intervention of this Court. In the circumstances I would propose that the appeal should be dismissed with costs. Clarke JA. I agree. Cole JA. I also agree. Orders accordingly. Counsel for the appellant: L King SC/RB McCloghryosa Solicitors for the appellant: Egisto and Romano Counsel for the respondent: MJ Mater Solicitors for the respondent: C M Meadows